701 F.

2d 875

UNITED STATES of America, Plaintiff-Appellee,

v.
Terry Lee STRUYF, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Ronald Orvell WILLIAMS, Defendant-Appellant.
Nos. 81-5349, 81-5494.

United States Court of Appeals,

Eleventh Circuit.
March 9, 1983.

Geoffrey C. Fleck, Miami, Fla., for defendant-appellant in No. 81-5349.

Lawrence W. Rosen, Asst. Federal Public Defender, Miami, Fla., for
defendant-appellant in No. 81-5494.
Kenneth W. Lipman, Jon May, Asst. U.S. Attys., Miami, Fla., for
plaintiff-appellee in both cases.
Appeals from the United States District Court for the Southern District of
Florida.
Before TJOFLAT, KRAVITCH and HATCHETT, Circuit Judges.
TJOFLAT, Circuit Judge:

Appellants Struyf and Williams were convicted in the district court of

conspiracy to possess marijuana with intent to distribute in violation of 21
U.S.C. Sec. 846 (1976); Williams was also convicted of possession of
marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1)
(1976) and 18 U.S.C. Sec. 2 (1976). We affirm the convictions.1

I.
2

Both appellants urge that the district court erroneously refused to dismiss the

indictment because the government's enforcement technique violated their due

process rights. Appellants' arrests arose out of the same Drug Enforcement
Agency (DEA) operation upheld in United States v. Savage, 701 F.2d 863,
(11th Cir.1983). Because the facts of Struyf's case do not differ substantially
from those in Savage, we affirm Struyf's conviction based on the reasoning
expressed therein.

The government's conduct toward Williams is distinguishable from its conduct

in Savage because the government's informant, Howard Tharpe, who was used
to solicit buyers of marijuana, was Williams' former brother-in-law. Williams
testified at trial that at least at one time he and Tharpe had been close friends.
On cross-examination, Williams stated that he had been divorced from Tharpe's
sister for nine years. He admitted that he did not see Tharpe for three to four
years after the divorce, during which time Tharpe was living in Tennessee
while Williams was living in Miami, Florida. Williams began seeing Tharpe
occasionally when Tharpe returned to Miami, which occurred three to four
years prior to trial.2

Williams testified that about three months prior to his arrest, which occurred on
July 30, 1980, Tharpe started coming by his house and talking about drug deals.
Williams testified that Tharpe came to his house about six to eight times in
May, at least ten times in June, and about eight times the last two weeks in
July. According to Williams, on these occasions and during phone
conversations, Tharpe told Williams that unidentified persons were chasing him
and threatening to kill his children; that his wife had to have a lung removed;
that he had stomach cancer; and that he needed money desperately.

Williams also called three witnesses who testified collectively that they had
seen Williams upset either after or while he had talked with Tharpe either in
person or on the phone.3 One witness testified that he was at a restaurant with
Williams and Tharpe, during which time Tharpe told Williams that his family
was being harassed. In addition, DEA agent George A. Auflick, who
supervised the government's operation, testified that Tharpe had been an
informant with the DEA for the greater part of two years prior to the date of
Williams' arrest; that he, Auflick, had never met Williams until the date of
arrest; that he had had phone conversations with Williams concerning a cocaine
deal he was trying to set up with Williams prior to Williams' arrest; and that
during the course of these conversations and on the date of Williams' arrest he
thought that Tharpe was Williams' brother-in-law. All of the above testimony
was uncontradicted.

Regardless whether Williams' testimony and that of his witnesses should be

credited, and regardless whether Tharpe's statements to Williams, if made, were

true, we do not believe the above facts make out a due process violation. See
United States v. Tobias, 662 F.2d 381 (5th Cir. Unit B 1981).4 The DEA
merely set up a scheme in which its agents posed as marijuana sellers and hired
confidential informants to round up buyers. Obviously, these informants,
including Tharpe, believed it was in their interest to round up as many buyers as
they could. The facts thus portray a government informant who out of selfinterest independently selected and approached his former brother-in-law to
engage in a marijuana deal.5 The informant described his financial and other
problems to his former brother-in-law, asked his former brother-in-law to
engage in marijuana deals, and obtained the cooperation he sought. These facts
do not establish a due process violation.

Rather, Williams made out an arguable case for entrapment, which the jury,
who had the opportunity to judge the demeanor of the witnesses, rejected.6 This
jury finding is important because it is a finding that Williams was predisposed
to commit the crimes of which he was convicted. Although we might consider
it extreme and outrageous for a largely unsupervised DEA informant to solicit
innocent persons into drug deals by invoking their sympathies,7 we do not
consider it extreme and outrageous under the facts of this case for such an
informant to invoke the sympathies of a former brother-in-law already
predisposed to engage in dealings in marijuana. Thus, we reject Williams' due
process claim.

II.
8

Appellant Struyf asserts that he was denied his right to a speedy trial under the
Speedy Trial Act of 1974, 18 U.S.C. Secs. 3161-3174 (1976 & Supp. V 1981)
(the Act) and under the sixth amendment to the Constitution. Under the Act

9 any case in which a plea of not guilty is entered, the trial of a defendant ... shall
[I]n
commence within seventy days from the filing date (and making public) of the
information or indictment, or from the date the defendant has appeared before a
judicial officer of the court in which such charge is pending, whichever date last
occurs.
10

Id. Sec. 3161(c)(1) (Supp. V 1981).

11

Section 3161(h) of the Act sets forth those periods of delay excluded in
computing the time within which the trial must be commenced. The following
exclusions are relevant to Struyf's claim: "delay resulting from any pretrial
motion, from the filing of the motion through the conclusion of the hearing or

other prompt disposition of such motion," id. Sec. 3161(h)(1)(F) (Supp. V

1981); "delay reasonably attributable to any period, not to exceed thirty days,
during which any proceeding concerning the defendant is actually under
advisement by the court," id. Sec. 3161(h)(1)(J) (Supp. V 1981); "[a]
reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance
has been granted," id. Sec. 3161(h)(7) (1976).
12

Struyf's argument that the statutory time period was exceeded rests in large part
on his inclusion of the time periods during which various pre-trial motions of
his codefendants were pending.8 Section 3161(h)(7), however, makes clear that
" 'an exclusion applicable to one defendant applies to all codefendants.' "
United States v. Fogarty, 692 F.2d 542, 546 (8th Cir.1982) (quoting United
States v. Edwards, 627 F.2d 460, 461 (D.C.Cir.), cert. denied, 449 U.S. 872,
101 S.Ct. 211, 66 L.Ed.2d 92 (1980)). This court has interpreted section
3161(h)(7) in the same manner. United States v. Varella, 692 F.2d 1352, 1358
(11th Cir.1982).

13

Excluding those periods during which pre-trial motions of Struyf's

codefendants were pending, we find only thirty-one days of includable time
between the date the indictment was filed and the date of trial, computed as
follows:

Days
Defendant
Date
Event
Elapsed
--------------------------------------------------------All
defendants 08-27-80 Indictment (Record,
vol. 1, at 1)
7
Struyf
09-04-80 Motion to withdraw
(Id. at 5)
09-22-80
Order (Id. at 97)
Gidus
09-11-80 9 motions (not part of
record)
09-22-80 Order (Id. at 96)
Struyf
09-18-80 22 motions(Id. at
12-95)
10-02-80
Order (Id. at 111)
Williams
09-25-80 3 motions(Id. at
98-109)
10-02-80
Order (Id. at 111)
12
Struyf
10-15-80 Motion to suppress
(Id. at 115)
02-03-81
Order (Record,
vol. 2, at 164)

14

Struyf

10-21-80
12-04-80

Struyf

10-27-80

Williams

02-03-81
10-24-80
11-06-80
11-06-80

Williams

11-13-80

Struyf

12-15-80
12-18-80

Gidus

12-23-80
01-28-81
02-03-81

Motion to travel (Record,

vol. 1, at 120)
Order (Record, vol.
2, at 143)
Motion to dismiss(Id.
at 132)
Order (Id. at 164)
Motion to adopt Struyf's
motion to suppress
(Id. at 124)
Order (Record, vol.
4, at 11, 69)
FIRST HEARING ON MOTION
TO SUPPRESS
(Record, vol. 4,
at 1-126)
Motion to transfer
(Record, vol. 2,
at 141)
Order (Id. at 145
Additional Memorandum
in Support of Motion
to Suppress (Id. at 146)
Order to Respond
(Id. at 153)
SECOND HEARING ON
MOTION TO SUPPRESS
Order on motions
(Id. at 164)
9

Struyf

02-13-81

Williams

02-18-81
02-27-81

Motion for discharge

(Id. at 180)
Petition for review
(Id. at 184)
Order (Id. at 203)
3

Struyf
03-03-81 Trial
--------------------------------------------------------Total elapsed time
31

15

Because the amount of includable time was well within the seventy-day limit,
we reject Struyf's claim that he was denied his right to a speedy trial under the
Act.

16

Concerning a defendant's constitutional right to a speedy trial, the court applies

"a balancing test in which the conduct of the prosecution and that of the
defendant are weighed." United States v. Varella, 692 F.2d 1352, 1359 (11th
Cir.1982).

The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct.
17

2182, 2192, 33 L.Ed.2d 101, outlined the factors to be considered: (1) the length of
delay; (2) the reason for delay; (3) the defendant's assertions of his right; and (4) the
prejudice to the defendant. "The first prong of Barker, the length of the delay, is
merely a threshold 'triggering mechanism.' The Court need not inquire into the other
factors unless there has been a delay of such length as to be 'presumptively
prejudicial.' "
18

Id. (quoting United States v. Edwards, 577 F.2d 883, 888 (5th Cir.1978)).

19

We hold that the seven month delay in this case was not "presumptively
prejudicial" under the first prong of the Barker test. Accordingly, we need not
inquire into the other factors. Cf. Varella, at 1359 and cases cited therein
(concerning delay from the date of the arrest of, or service with a summons on,
the defendant to the filing of the indictment or information). Thus, we deny
Struyf's claim that he was denied his constitutional right to a speedy trial.

20

AFFIRMED.

Struyf and Williams, although codefendants, were tried and convicted

separately. Struyf waived his right to a jury trial; Williams did not. Their cases
were consolidated on appeal

Williams' trial took place in April 1981. Williams was arrested in July 1980

The government elicited from one witness on cross-examination that the

witness could not be sure Williams had in fact spoken to Tharpe on the phone
while appearing upset; Williams had only told the witness that Tharpe was the
other party to the phone conversation

In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982), we

adopted as precedent decisions of the Unit B panel of the Former Fifth Circuit

The record is barren of any evidence that the government suggested to Tharpe
that he approach Williams in particular

We recognize that Williams argues he was entrapped as a matter of law. The

doctrine of entrapment as a matter of law did not survive the Supreme Court's
decision in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d
113 (1976). United States v. Rodriguez, 585 F.2d 1234, 1240 n. 5 (5th
Cir.1978)

Of course we do not decide this question

Struyf entered into a stipulation with the government in which he waived trial
by jury; codefendants Williams and one Gidus were tried before a jury